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2002 DIGILAW 1622 (RAJ)

Chandar Singh v. State of Rajasthan

2002-09-19

SUNIL KUMAR GARG

body2002
JUDGMENT 1. 1. This writ petition under Article 226 of the Constitution of India purporting to be under Article 227 of the Constitution of India has been filed by petitioner on 25-7-90 against the respondents with a prayer that the order dated 17-9-83 (Annex.6) passed by the Revenue Appellate Authority. Bikaner camp Sri Ganganagar (respondent No.3) by which appeal of respondent No.4 (Neer Singh) was allowed and allotment of land made in favour of the petitioner through order dated 10-1-83 (Annex.4) passed by SDO, Nohar was set aside, and the judgment of Board of Revenue, Ajmer (respondent Not) dated 3-3-86 (Annex.1) by which appeal of the petitioner against the judgment dated 17-9-83 (Annex.6) passed by the Revenue Appellate Authority, Bikaner (respondent No.3) was dismissed and the judgment dated 7-5-90 (Annex.2) by which review petition filed by the petitioner was also dismissed by the Board of Revenue (respondent No.2) be quashed and set aside. 2. The facts of the case as put forward by the petitioner are as under : i) That a land bearing khasra No.239 measuring 20 bighas and 16 biswas was allotted to the petitioner by the SDO, Nohar through order dated 10-1-83 (Annex.4). ii) Against the allotment of land made in favour of the petitioner through order dated 10-1- 83, the respondent No.4 (Neer Singh) preferred an appeal before the Revenue Appellate Authority, Bikaner camp Sri Ganganagar (respondent No.3) and the Revenue Appellate Authority through judgment dated 17-9-83 (Annex.6) allowed the appeal filed by respondent No.4 (Neer Singh) holding that possession of respondent No.4 (Heer Singh) was found on the disputed land and the land which was in possession of respondent No.4 (Neer Singh) should not have been allotted to 3rd party unless and until, he was dispossessed from that land under the provisions of Section 91 of the Rajasthan Land Revenue Act. iii) Aggrieved from the judgment dated 17-9-83 (Annex.6), passed by the Revenue Appellate Authority, Bikaner (respondent No.3), the petitioner preferred an appeal before the Board of Revenue (Respondent No.2) and the Board of Revenue through judgment dated 3-3-86 (Annex.1) dismissed the appeal of the petitioner inter alia holding that: a) That order of allotment dated 10-1-83 (Annex.4) passed by the SDO, Nohar was bad in law as the allotment of land was in contravention of Rule 13 (3A) of the Rajasthan Land Revenue (Allotment of Land for agricultural Purposes) Rules, 1970 (hereinafter referred to as the Rules of 1970) as quorum of the Land Allotment Advisory Committee was not complete in the manner that at the time of allotment, only two members were present in the Advisory Committee, whereas three members should have been present in the Advisory Committee except Sub Divisional Officer. b) That the land which was allotted to the petitioner was in the possession of respondent No.4 (Heer Singh) and, therefore, respondent No.4 (Heer Singh) was necessary party and further more since for allotment of land, application of respondent No.4 (Neer Singh) was pending, that application should have been considered and decided before allotting the land-to the petitioner. Thus, allotment of land made in favour of the petitioner through order dated 10-1- 84 (Annex.4) passed by the SDO, Nohar was not in accordance with law. iv) That aggrieved from the judgment dated 3-3-86 (Annex.1) passed by the Board of Revenue (respondent No.2), the petitioner preferred a review petition before the Board of Revenue (respondent No.2) and the Board of Revenue through its judgment dated 7-5-90 (Annex.2) dismissed the review petition filed by the petitioner and in the judgment dated 7-5-90 in para 4, the Board of Revenue observed that the petitioner had himself agreed in para 5 of the application that at the time of allotment, only two members were present, and therefore, the quorum was incomplete. v) Aggrieved from the judgments dated 17-9- 83 (Annex.6) passed by the Revenue Appellate Authority, Bikaner (respondent No.3) and judgments dated 3-3-86 and 7-5-90 (Annex.1 and 2 respectively) passed by the Board of Revenue, this writ petition has been preferred with the abovementioned prayer. 3. v) Aggrieved from the judgments dated 17-9- 83 (Annex.6) passed by the Revenue Appellate Authority, Bikaner (respondent No.3) and judgments dated 3-3-86 and 7-5-90 (Annex.1 and 2 respectively) passed by the Board of Revenue, this writ petition has been preferred with the abovementioned prayer. 3. The learned counsel for the petitioner has submitted that the Board of Revenue (respondent No.2) has erred in holding that the allotment of land to the petitioner was illegal for want of quorum and for that he has placed reliance of abstract copy of allotment register dated 10-1- 83 (Annex.3) and he has further submitted that through allotment register dated 10-1-83 (Annex.3) it is clear that in the Land Allotment Advisory Committee, apart from SDO, Sarpanch, Vikas Adhikari and Tehsildar were present and thus, there was complete quorum of three persons and hence the findings recorded by the Revenue Appellate Authority, Bikaner (respondent No.3) and the Board of Revenue (respondent No.2) are erroneous one and they should be set aside. 4. On the other hand, the learned counsel for the respondents have supported the judgments dated 17-9-83 (Annex-6) passed by the Revenue Appellate Authority, Bikaner (respondent No.3), 3-3-86 (Annex. 1) passed by the Board of Revenue, Ajmer (respondent No.2) and the judgment dated 7-5-90 (Annex.2) passed by the Board of Revenue (respondent Not) and submitted that no interference is called for in these judgments and hence the writ petition be dismissed. 5. I have heard the learned counsel for the petitioner as well as respondents and perused the record. 6. For convenience, Rule 13 of the Rules of 1970 is quoted hereunder: 13. allotment to be in consultation with Advisory Committee: (1) all allotment shall be made by the Sub Divisional Officer in consultation with an advisory Committee consisting of i) the member of the Rajasthan Legislative Assembly in whose constituency the land is situated: ii) the Pradhan of the Panchayat Samiti having jurisdiction; iii) the Sarpanch of the Panchayat having jurisdiction; iv) the Vikas Adhikari of the Panchayat Samiti having jurisdiction; v) the Tehsildar of the Tehsil having jurisdiction; vi) a person belonging to a Scheduled Caste or Scheduled Tribe to be nominated by the Panchayat Samiti from amongst its members and viii) a person to be nominated by the State Government in areas in which such nomination is considered necessary in public interest. 2 ............. 3............ 2 ............. 3............ 3-A The quorum for constituting the meeting of the Advisory Committee shall be three members of whom one shall be from clause (i), (ii) or (iii) of sub-rule (1)." 7. From persuing sub-rule 3-A of Rule 13 of the Rules of 1970, it appears that quorum would be complete when there would be three members and out of three members one member shall be from Clause (i) to (iii) of sub-rule 1 of Rule 13 of the Rules of 1970. 8. In the present case, Sarpanch was present in the Advisory Committee, thus, compliance of Sub-rule 3-A of the Rule 13 of the Rules of 1970 has been made. For other two members clauses (iv) to (vii) of sub-rule 1 of Rule 13 of the Rules of 1970 have to be seen. 9. In the advisory Committee, Vikas Adhikari Daulat Ram and Tehsildar Kishan Lal were present, therefore, quorum was complete. 10. From persuing the Allotment register (Annex.3), prima facie it appears that quorum was complete. From this point of view, the findings of Board of Revenue (respondent No.2) in respect of quorum cannot be sustained. It is one of the aspects of the matter and to this extent, the judgments of the Board of Revenue dated 3-3-86 and 7-5-90 (Annex.1 and 2 respectively) are to be modified. 11. From persuing the judgment dated 17-9- 83 (Annex.6) passed by the Revenue Appellate Authority, Bikaner (respondent No.3), it is apparent that allotment of the land made in favour of the petitioner was set aside because of simple reason that respondent No.4 (Neer Singh) was found in possession of land and the order of allotment dated 10-1-83 (Annex.4) passed by SDO, Nohar was passed without hearing him. This finding of the Revenue Appellate Authority was upheld by the Board of Revenue (respondent No.2) on two points: i) That since respondent No.4 (Heer Singh) was in possession of disputed land, therefore, that land could not have been allotted to the petitioner without hearing him. ii) That since the application for allotment of land in question submitted by respondent No.4 Heer Singh) was pending, therefore, without' deciding that application, the allotment of land to the petitioner was bad. 12. ii) That since the application for allotment of land in question submitted by respondent No.4 Heer Singh) was pending, therefore, without' deciding that application, the allotment of land to the petitioner was bad. 12. That since finding pertaining to possession of respondent No.4 (Heer Singh) recorded by the Revenue Appellate Authority, Bikaner (respondent No.3) and the Board of Revenue (respondent No.2) are finding of facts and the same are based on correct appreciation of evidence therefore, no interference is called for in the findings of facts pertaining to possession of respondent No.4 (Heer Singh) recorded by the Revenue Appellate Authority (respondent No.3) and the Board of Revenue (respondent No.2) in exercise of powers under Article 227 of the Constitution of India. 13. Even the findings of Board of Revenue that quorum was incomplete be not accepted, all the same, allotment made in favour of the petitioner cannot be sustained for the reasons just mentioned above. On The Point Of Applicability And Scope Of Article 227 Of The Constitution Of India. 14. It is well established that it is only when an order of a tribunal is violative of the fundamental basis principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, that a court can justifiably intervene under Article 227 of the Constitution of India. 15. The power of general superintendence conferred by Article 227 involves a duty on the part of the High Court to keep all courts and tribunals within its territorial jurisdiction within the bounds of their authority, to see that they do what their duty requires and they do it in a legal manner. This means that the High Court can interfere in cases of (a) Erroneous assumption or excess of jurisdiction. (b) Refusal to exercise jurisdiction. (c) Error of law apparent on the face of the record, as distinguished from a mere mistake, of law or error of law relating to jurisdiction. (d) Violation of principles of natural justice. (e) Arbitrary or capricious exercise of authority, or discretion. (f) Arriving at a finding which is perverse or based on no material. 16. Under Article 227, the High Court cannot interfere with the exercise of a discretionary power vested in the inferior Court or Tribunal, unless its finding or order is clearly perverse or patently unreasonable. 17. (e) Arbitrary or capricious exercise of authority, or discretion. (f) Arriving at a finding which is perverse or based on no material. 16. Under Article 227, the High Court cannot interfere with the exercise of a discretionary power vested in the inferior Court or Tribunal, unless its finding or order is clearly perverse or patently unreasonable. 17. So far as present case is concerned, the findings of facts pertaining to possession of respondent No.4 (Heer Singh) over the land in question recorded by the Board of Revenue (respondent No.2) are based on correct appreciation of evidence and material available on record and they do not suffer from any illegality. There is no error of law apparent on the face of record and it cannot be said that the findings of facts pertaining to possession of respondent No.4 (Heer Singh) recorded by the Board of Revenue (respondent No.2) are perverse and based on no material. Hence, no interference is called for with the findings of facts pertaining to possession of respondent No.4 (Neer Singh) over the land in question recorded by the Board of Revenue (respondent No.2) in exercise of power under Article 227 of the Constitution of India. 17A. Since allotment of land made in favour of the petitioner cannot be sustained on the point of possession, therefore, the findings of the Revenue Appellate Authority (respondent No.3) and the Board of Revenue (respondent No.2) are liable to be upheld and therefore, the petitioner is not entitled to any relief sought for in this writ petition. 18. For the reasons mentioned above, no interference is called for in the impugned judgment dated 17-9-83 (Annex.6) passed by the Revenue Appellate Authority, Bikaner (respondent No.3) and the judgments dated 3-3-86 (Annex.1) and 7-5-90 (Annex.2) passed by the Board of Revenue (respondent No.2) deserve to be modified to the above extent. Accordingly, the present writ petition is dismissed. However, the judgments dated 3-3-86 (Annex.1) and 7-5-90 (Annex.2) passed by the Board of Revenue (respondent No.2) are modified on the point of quorum as stated above. Cost made easy. Petition dismissed. *******